Colorado judges decline to change nearly 1,400 inmate sentences that may have been questionable

Colorado Department of Corrections officer walks along the third level of a cell house at Fremont Correctional Facility in Canon City in August 2011. (Andy Cross, The Denver Post file)

Colorado judges have declined to change sentences in nearly 1,400 cases that prison officials said may have mistakenly allowed convicts to each shave years off their time behind bars, according to state Department of Corrections documents released Wednesday.

Judges corrected sentences in just 17 percent of the 1,677 potentially questionable cases sent to them for review, leaving 1,387 sentences unchanged, according to a DOC spreadsheet.

Fredrick Thomas. (Colorado Department of Corrections)

Still, that meant judges corrected sentences in 290 cases. Twenty-two had already been released from prison; nine were rearrested and ordered to serve the rest of their terms. Twelve were allowed to remain on parole, and one, 32-year-old car thief Fredrick Thomas, is a fugitive, according to DOC records.

The review, which examined a 10-year period, showed huge discrepancies among counties when it came to deciding whether to change sentences. Denver had 309 questionable sentences, but judges corrected only 36, or 13 percent. In Logan County, 20 questionable sentences were found, and judges changed 12 of them, or 60 percent.

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"We believe that those orders were questionable and merited judicial review to make sure those sentences met statutory intent for consecutive sentences," said Alison Morgan, DOC spokeswoman. "The ultimate decision lies with judicial review."

The questions center on whether inmates convicted of multiple crimes were mistakenly given concurrent sentences, rather than consecutive terms as state law dictates in many instances. A concurrent sentence means no additional prison time is served.

A similar mistake occurred in the case of Evan Ebel, the parolee suspected of killing DOC chief Tom Clements in March. A sentencing error resulted in Ebel's release four years early because he was given a concurrent sentence.

In April, after Clements' death, Gov. John Hickenlooper asked DOC officials to audit thousands of files of inmates who had multiple felonies.

Ebel, who was serving time for robbery, assaulted a prison guard in 2008 and was given a new four-year sentence. But when Fremont County District Judge David Thorson failed to indicate the sentence was consecutive, DOC automatically interpreted the sentence as concurrent.

Judges around Colorado say not all of the sentences in the DOC review were mistaken and should not have been changed.

James Hartmann, District Court Chief Judge for the 19th Judicial District, said he and eight other district judges in Weld County reviewed each case that the DOC sent them for review. During their reviews, judges pulled case files, reviewed transcripts and listened to court recordings to determine whether a correction was needed.

Hartmann stressed that each case was unique and sentencing laws are complicated.

"There are so many nuances to the sentencing statutes that it is difficult to paint it with a broad brush," Hartmann said.

Some cases required a change as simple as changing one word on a sentencing order. In other cases the proper sentence had been handed down and served, he said.

Hartmann said reviewing the cases was a welcomed and healthy exercise for judges in Weld County.

"We want to be accurate in all of our cases," Hartmann said. "It is important for us to ensure that our sentencing orders accurately convey what was imposed by the court and that we are following the law."

DOC hired retired employees to assist administrators in the review of sentencing records that took several months. The correctional experts searched for inmates convicted of 19 crimes in which consecutive sentences were required, including violent and sex offenses and prison terms.

The reviewers also looked for cases like Ebel's in which the court "mittimus" failed to indicate whether a new conviction was to be served concurrently or consecutively.

Officials reviewed 8,607 cases and determined that 3,249, or 38 percent, had possible problems. A secondary review culled the questionable list down to 1,807, which were sent to judges across the state for their review. Of those, judges did not change sentences for 1,381 offenders.

Changes were made in only 290 cases, or 17 percent.

A total of 280, or 14 percent, of the cases are pending determination.

Hickenlooper's office praised those who reviewed prison sentences.

"We appreciate the work done by the Department of Corrections and Judicial Department to review the offender files," said Eric Brown, a spokesman for the governor. "We are also confident the appropriate processes are in place to address any future issues involving consecutive or concurrent sentencing."

The 2013 Colorado Legislature passed a law requiring DOC officials to seek clarification when judges fail to indicate whether a new sentence is to be served concurrently or consecutively.

Judges face a challenging task because sentencing laws in Colorado are complicated, specific and constantly changing, said Aya Gruber, a law professor at the University of Colorado. Gruber teaches courses in criminal law and procedure.

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